Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules 3863

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 194

[FRL–5954–7]

RIN 2060–AE30

Opportunity to Comment on EPA’s

Analysis of Air Drilling as it Relates to

EPA’s Proposed Rule: ‘‘40 CFR Part

194, Criteria for the Certification and

Re-certification of the Waste Isolation

Pilot Plant’s (WIPP) Compliance with

the 40 CFR Part 191 Disposal

Regulations: Certification Decision’’

AGENCY: Environmental Protection

Agency.

ACTION: Notice of availability.

SUMMARY: The Environmental Protection

Agency (EPA) is announcing the

availability of EPA’s analysis of the

practice of air drilling during petroleum

exploration and its impact on the ability

of the Waste Isolation Pilot Plant to

contain radioactive waste within federal

environmental and public health limits.

EPA’s analysis of air drilling is now

available for review in the public

dockets listed in ADDRESSES.

DATES: EPA is requesting public

comment on EPA’s review of air

drilling. Comments must be received by

EPA’s official docket on or before

February 27, 1998.

ADDRESSES: EPA’s official docket for all

rulemaking activities under the Waste

Isolation Pilot Plant Land Withdrawal

Act, as amended, is located in

Washington, DC, in the Air Docket,

Room M1500, Mailcode 6102, U.S. EPA,

401 M Street, SW, Washington, DC

20460. Information on EPA’s radioactive

waste disposal standards (40 CFR part

191), the compliance criteria (40 CFR

part 194), and EPA’s proposed decision

to certify WIPP is filed in the official

EPA Air Docket, Dockets No. R–89–01,

A–92–56, and A–93–02, respectively,

and is available for review at the

following three EPA WIPP docket

locations in New Mexico: in Carlsbad at

the Municipal Library, Hours: Mon–

Thu, 10–9, Fri–Sat, 10–6, and Sun 1–5;

in Albuquerque at the Government

Publications Department, Zimmerman

Library, University of New Mexico,

Hours: Mon–Thu, 8–9, Fri, 8–5, Sat–

Sun, 1–5; and in Santa Fe at the

Fogelson Library, College of Santa Fe,

Hours: Mon–Thu, 8–12 Midnight, Fri,

8–5, Sat, 9–5, and Sun, 1–9.

Note: The dockets in New Mexico contain

only major items from the official Air docket

in Washington, DC, plus all those documents

added to the official docket since the October

1992 enactment of the WIPP Land

Withdrawal Act, Pub. L. No. 102–579 (LWA).

As provided in EPA’s regulations at

40 CFR Part 2, and in accordance with

normal Air docket procedures, if copies

of any docket materials are requested, a

reasonable fee may be charged for

photocopying.

FOR FURTHER INFORMATION CONTACT: Tom

Peake, Office of Radiation and Indoor

Air, (202) 564–9310 or call EPA’s 24-

hour toll-free WIPP Information Line, 1–

800–331–WIPP.

SUPPLEMENTARY INFORMATION:

Background

The Department of Energy (DOE) is

developing the Waste Isolation Pilot

Plant (WIPP) near Carlsbad in

southeastern New Mexico as a potential

deep geologic repository for disposal of

transuranic (TRU) radioactive waste. As

defined by the WIPP LWA, as amended,

TRU waste consists of materials

containing elements having atomic

numbers greater than 92 (with half-lives

greater than twenty years), in

concentrations greater than 100

nanocuries of alpha-emitting TRU

isotopes per gram of waste. Most TRU

waste consists of items contaminated

during the production of nuclear

weapons, e.g., rags, equipment, tools,

and organic and inorganic sludges. On October 23, 1997, the

Environmental Protection Agency (EPA)

announced its proposed decision to

issue to the Secretary of the Department

of Energy (DOE) a ‘‘certification of

compliance’’ that the WIPP will comply

with EPA’s radioactive waste disposal

standards at 40 CFR part 191, subject to

several conditions related to: (1) Waste

characterization (to determine the

radionuclides and other contents of

waste disposal containers); (2) quality

assurance programs at DOE waste

generator sites; (3) implementation of

passive institutional controls (PICs)

(intended to warn future generations

about the hazards of the radioactive

waste buried in the WIPP); and (4) panel

seals (used to contain the waste within

compartments in the facility). In

addition, DOE is required to report to

EPA any change in the activities or

conditions at the WIPP that differ from

those described in the Compliance

Certification Application (CCA), and to

immediately inform EPA of any

activities or conditions at the WIPP that

might cause the WIPP to exceed the

containment requirements of the

disposal regulations. This proposal,

entitled ‘‘Criteria for the Certification

and Recertification of the Waste

Isolation Pilot Plant’s Compliance with

the 40 CFR Part 191 Disposal

Regulations: Certification Decision;

Proposed Rule,’’ was published in the

Federal Register at 62 FR 58791–58838

on October 30, 1997, which marked the

start of a 120-day public comment

period. EPA’s proposed decision to

certify WIPP is based on an extensive

independent technical review and

evaluation (including confirmatory

audits and inspections) of the DOE’s

CCA and supplemental materials based

on the requirements specified in the

WIPP Compliance Criteria at 40 CFR

part 194.

The public has raised air drilling for

petroleum exploration as a potential

scenario that should have been

considered by the DOE in its submission

of the Certification Compliance

Application CCA. In the CCA, DOE

assumes that mud is the fluid used in

conjunction with drilling for resources.

EPA has received comments indicating

that the use of air (instead of mud) is a

drilling technique that should be

considered in the performance of the

WIPP. EPA has analyzed the potential

for air drilling, and the potential

impacts that air drilling could have on

the performance of the WIPP. This

analysis is now available for public

review in EPA’s dockets.

The Agency concludes from its

analysis of the impacts of air drilling

that no adverse consequences would

result on the ability of the WIPP site to

meet the Agency radioactive waste

disposal standards at 40 CFR 191.

Therefore, the Agency’s proposed

decision of October 23, 1997, to issue

the DOE a certification of compliance

remains unchanged.

Dated: January 21, 1998.

Richard D. Wilson,

Acting Assistant Administrator for Air and

Radiation.

[FR Doc. 98–1913 Filed 1–26–98; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE53

Endangered and Threatened Wildlife

and Plants; Proposed Endangered

Status for Erigeron decumbens var.

decumbens (Willamette Daisy) and

Fender’s Blue Butterfly (Icaricia

icarioides fenderi) and Proposed

Threatened Status for Lupinus

sulphureus ssp. kincaidii (Kincaid’s

lupine)

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.
3864 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules

SUMMARY: The U.S. Fish and Wildlife

Service (Service) proposes endangered

status pursuant to the Endangered

Species Act (Act) of 1973, as amended,

for a plant and a butterfly, Erigeron

decumbens var. decumbens (Willamette

daisy) and Fender’s blue butterfly

(Icaricia icarioides fenderi), and

proposes threatened status for a plant,

Lupinus sulphureus ssp. kincaidii

(Kincaid’s lupine). These species are

restricted to native prairie in the

Willamette Valley of Oregon and are

currently known from a few small

remnants of a formerly widespread

distribution. In addition to its Oregon

occurrences, L. sulphureus ssp.

kincaidii is also known from one small

site in southern Washington. The three

taxa are threatened by one or more of

the following—commercial and/or

residential development, agriculture,

silviculture, road improvement, overcollection, herbicide use, and naturally

occurring demographic and random

environmental events. This proposal, if

made final, would invoke the Federal

protection and recovery provisions of

the Act for these plant and butterfly

species.

DATES: Comments from all interested

parties must be received by March 30,

1998. Public hearing requests must be

received by March 13, 1998.

ADDRESSES: Comments and materials

concerning this proposal should be sent

to the State Supervisor, U.S. Fish and

Wildlife Service, Oregon State Office,

2600 SE 98th Ave., Suite 100, Portland,

Oregon 97266. Comments and materials

received will be available for public

inspection, by appointment, during

normal business hours at the above

address.

FOR FURTHER INFORMATION CONTACT: Dr.

Andrew F. Robinson, Jr., Botanist; or

Diana Hwang, Fish and Wildlife

Biologist, U.S. Fish and Wildlife Service

(see ADDRESSES section above or

telephone 503–231–6179, FAX 503–

231–6195).

SUPPLEMENTARY INFORMATION:

Background

Fender’s blue butterfly (Icaricia

icarioides fenderi), Lupinus sulphureus

ssp. kincaidii (Kincaid’s lupine), and

Erigeron decumbens var. decumbens

(Willamette daisy) are restricted to the

Willamette Valley of Oregon. The valley

is a 209 kilometer (km) long (130 miles

(mi)) and 32–64 km (20–40 mi) wide

alluvial flood plain with an overall

northward gradient (Orr et al. 1992).

The valley is narrow and flat at its

southern end, widening and becoming

hilly near its northern end at the

confluence of the Willamette and

Columbia Rivers. In addition to its

Oregon occurrences, L. sulphureus ssp.

kincaidii is also known from one small

site in southern Washington.

The alluvial soils of the Willamette

Valley and southern Washington host a

mosaic of grassland, woodland, and

forest communities. Fender’s blue

butterfly, Lupinus sulphureus ssp.

kincaidii, and Erigeron decumbens var.

decumbens occupy native grassland

habitats within the Willamette Valley.

Based on the limited available evidence,

Franklin and Dyrness (1973) asserted

that most Willamette Valley grasslands

are seral (one stage in a sequential

progression), requiring natural or

human-induced disturbance for their

maintenance. Johannessen et al. (1971)

indicated that the vast majority of

Willamette Valley grasslands would be

forested if left undisturbed. Important

exceptions to this successional pattern

are grass balds on valley hillsides,

which may be climax grasslands due to

the presence of deep, fine-textured, selfmulching soils or xeric (very dry)

lithosoils (Franklin and Dyrness 1973).

Two native prairie types occur in the

Willamette Valley, wet prairie and

upland prairie. Fender’s blue butterfly

and Lupinus sulphureus ssp. kincaidii

are typically found in native upland

prairie with the dominant species being

Festuca rubra (red fescue) and/or

Festuca idahoensis (Idaho fescue) and

Calochortus tolmiei (Tolmie’s

mariposa), Silene hookeri (Hooker’s

catchfly), Fragaria virginiana

(broadpetal strawberry), Sidalcea

virgata (rose checker-mallow), and

Lomatium spp. (common lomatium)

serving as herbaceous indicator species

(Hammond and Wilson 1993). These

dry, fescue prairies make up the

majority of habitat for Fender’s blue

butterfly and L. sulphureus ssp.

kincaidii. Although Fender’s blue

butterfly and L. sulphureus ssp.

kincaidii are occasionally found on

steep, south-facing slopes and barren

rocky cliffs, neither of these species

appear capable of occupying the most

xeric oatgrass communities on these

south facing slopes.

The primary habitat for Erigeron

decumbens var. decumbens is native

wetland prairie. This habitat is

characterized by the seasonally-wet

Deschampsia caespitosa (tufted

hairgrass) community that occurs in

low, flat regions of the Willamette

Valley where flooding creates anaerobic

and strongly reducing soil conditions.

This wet prairie community includes

Juncus spp. (rush) and Danthonia

californica (California oatgrass) as codominant native species, as well as the

introduced species Festuca

arundinaceae (tall fescue), Bromus

japonicus (Japanese brome) and

Anthoxanthum odoratum (sweet vernal

grass) (USFWS 1993). Another

endangered species, Lomatium

bradshawii (Bradshaw’s lomatium) also

grows in wet prairie habitat. Atypically,

one population of E. decumbens var.

decumbens occurs on top of a dry, stony

butte in an upland prairie.

The impact of humans on the

botanical communities of the

Willamette Valley date back several

centuries to the Kalapooya Indians, who

cleared and burned lands used for

hunting and food gathering. Early

accounts by David Douglas in 1826

indicate extensive burning of the valley

floor, from its northern end at the falls

of the Willamette River to its southern

extremities near Eugene. Burned areas

were documented by Douglas as being

so complete as to limit the forage

available for his horse and to reduce

game availability (Douglas 1972).

Accounts by other early explorers

support Douglas’ observations and

suggest a pattern of annual burning by

the Kalapooya (Johannessen et al. 1971).

The Kalapooya land practices resulted

in the maintenance of extensive wet and

dry prairie grasslands, which may have

facilitated their hunting efforts and

limited the potential for sneak attacks

by enemies (Clarke 1905, Douglas 1972,

Minto 1900, Smith 1949). Although

much of the woody vegetation was

prevented from becoming established on

the grasslands by this treatment, the

random survival of young fire-resistant

species such as Quercus garryana

(Oregon white oak) accounted for the

widely spaced trees on the margins of

the valley (Habeck 1961). After 1848,

burning decreased sharply through the

efforts of settlers to suppress large-scale

fires. Consequently, the open, park-like

nature of the valley floor was lost,

replaced by agricultural fields, dense

oak and fir forests, and scrub lands

following logging.

The Willamette basin covers

approximately 2,600,000 hectares (ha)

(6,400,000 acres (ac)), which was

estimated in the mid-1880’s to consist of

one-sixth prairie and five-sixths forest

(Lang 1885). The extent of the prairie

component can be analyzed through

historical information from land survey

records. Natural grasslands described by

Federal land surveyors in the 1850’s

were broken down into three distinct

types—oak savannah, upland prairie,

and wet prairie (Habeck 1961). Of the

estimated 409,000 ha (1,010,000 ac) of

historic native grasslands extant prior to

1850, approximately 277,000 ha

(685,000 ac) appears to have consisted

of upland prairie and 132,000 ha
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules 3865

(325,000 ac) of wet prairie (E. Alverson,

The Nature Conservancy, Eugene, pers.

comm., 1994).

This extensive resource was rapidly

depleted through the conversion of

native prairie to agricultural use during

settlement. Within 30 years of passage

of the Donation Land Act of 1850, most

prairie lands were occupied by

European-American settlers who

quickly subdivided their original land

grants to accommodate the rapid

increase in population (Lang 1885). The

level, open tracts of prairie were the first

to go under the plow (Lang 1885) and

only boggy, flood-prone areas prevented

complete conversion of the native

grassland community to cropped

monoculture. Limitations on

development imposed by seasonal

flooding and a high water table were,

however, overcome after 1936, when the

U.S. Army Corps of Engineers (Corps)

initiated water projects to provide flood

control and security for expanded

agricultural activity.

Fender’s blue butterfly, Lupinus

sulphureus ssp. kincaidii and Erigeron

decumbens var. decumbens likely once

occurred over a large distribution

throughout the historic native prairie,

and have been eliminated from these

areas as native prairie habitat has been

converted to agriculture or otherwise

developed. Native prairie vegetation in

the Willamette Valley was decimated by

the rapid expansion of agriculture

during the 140-year period from the

1850’s to the present. With extensive

changes in the fire regime, disturbance

forces that maintained native prairies

were substantially altered. Fire

suppression allowed shrub and tree

species to overtake grasslands, while

agricultural practices hastened the

decline of native prairie species through

habitat loss and increased grazing

(Johannessen, et al. 1971; Franklin and

Dyrness 1973). Refugia from these forces

of change were limited to fence rows

and intervening strips of land along

agricultural fields and roadsides.

Although large prairie expanses

dominated by native species had been

lost by the early 1900’s, many remnant

grasslands with a large native species

component have been recently

identified. These remnants, even though

dominated by exotic species, support

the only remaining occurrences of

native prairie species in the Willamette

Valley. Current estimates of the

remaining native upland prairie in the

Willamette Valley total less than 400 ha

(1,000 ac) (Alverson, pers. comm. 1994).

This estimate represents only one-tenth

of one percent of the original upland

prairie once available to Fender’s blue

butterfly, Lupinus sulphureus ssp.

kincaidii, and less than one half of this

habitat (84 sites) is currently occupied

by Fender’s blue butterfly and/or L.

sulphureus ssp. kincaidii and/or

Erigeron decumbens var. decumbens.

Within this available habitat, E.

decumbens var. decumbens occupies 28

sites across 116 ha (286 ac), L.

sulphureus ssp. kincaidii occupies 51

sites across 145 ha (357 ac), while

Fender’s blue butterfly occupies 31 sites

across 165 ha (408 ac). Similar losses

have occurred for wet prairie habitats,

but estimates of current acreage are not

available.

Fender’s Blue Butterfly

Fender’s blue butterfly is one of about

a dozen subspecies of Boisduval’s blue

butterfly (Icaricia icarioides). Icaricia

icarioides is found in western North

America; subspecies fenderi is restricted

to the Willamette Valley (Dornfeld 1980;

R. H. T. Mattoni, University of

California, pers. comm. to C. Nagano

1997; J. Emmel, Hemet, California, pers.

comm. to C. Nagano 1997). Fender’s

blue butterfly was described by Ralph

W. Macey (1931) as Plebejus maricopa

fenderi based on specimens he had

collected in Yamhill County, Oregon.

The species maricopa is currently

considered to be a synonym of the

species icarioides (Miller and Brown

1981). The species icaricia has been

determined to be a member of the genus

Icaricia, rather than the genus Plebejus

(Miller and Brown 1981; R. H. T.

Mattoni, pers. comm. to C. D. Nagano

1997). Subspecies fenderi was

considered to be a synonym of the

pardalis blue butterfly (Icaricia

icarioides pardalis), an inhabitant of the

central California Coast Range near San

Francisco (Downey 1975; Miller and

Brown 1981); however Fender’s blue

butterfly is a distinct taxon based on

adult characters and geographic

distribution (Dornfeld 1980; Hammond

and Wilson 1993; R. H. T. Mattoni and

J. Emmel, pers. comm. to C. D. Nagano

1997).

Fender’s blue butterfly is a small

sized butterfly with a wingspan of

approximately 2.5 centimeter (cm) (1

inch (in)). The upper wings of the males

are brilliant blue in color and the

borders and basal areas are black. The

upper wings of the females are

completely brown colored. The

undersides of the wings of both sexes

are creamish tan with black spots

surrounded with a fine white border or

halo. The dark spots on the underwings

of the males are small on Fender’s blue

butterfly; surrounded with wide white

haloes on the pembina blue butterfly

(Icaricia icarioides pembina); the

underside is very pale whitish gray with

broad haloes around the black spots on

the hindwings of Boisduval’s blue

butterfly.

The historic distribution of Fender’s

blue butterfly is not precisely known

due to the limited information collected

on this species prior to its description

in 1931. Although the type specimens

for this butterfly were collected in 1929

by Ralph W. Macy, only a limited

number of collections were made

between the time of the subspecies’

discovery and Macy’s last observation

on May 23, 1937, in Benton County,

Oregon (Hammond and Wilson 1992a).

A lack of information on the identity of

the butterfly’s host plant caused

researchers to focus their survey efforts

on common lupine species known to

occur in the vicinity of Macy’s

collections. As a result, no Fender’s blue

butterflies were observed during 20

years of widespread investigation.

Finally, Fender’s blue butterfly was

rediscovered in 1989 by Dr. Paul

Hammond at McDonald Forest, Benton

County, Oregon on an uncommon

species of lupine, Lupinus sulphureus

ssp. kincaidii. Based on this additional

information, recent surveys have

determined that the animal is confined

to the Willamette Valley and currently

occupies 31 sites in Yamhill, Polk,

Benton, and Lane Counties (Hammond

and Wilson 1993; Schultz 1996). One

population at Willow Creek is found in

wet, Deschampsia-type prairie, while

the remaining sites are found on drier

upland prairies characterized by

Festuca spp. Sites occupied by Fender’s

blue butterfly are located almost

exclusively on the western side of the

valley, within 33 km (21 mi) of the

Willamette River.

Although only limited observations

have been made of the early life stages

of Fender’s blue butterfly, the life cycle

of the species likely is similar to other

subspecies of Icaricia icarioides (R. H.

T. Mattoni, pers. comm. to C. Nagano

1997; G. Pratt, Riverside, California,

pers. comm. to C. Nagano 1997;

Hammond and Wilson 1993). Adult

butterflies lay their eggs on perennial

Lupinus sp. (Ballmer and Pratt 1988),

the foodplant of the caterpillar during

May and June. Newly hatched larvae

feed for a short time, reaching their

second instar in the early summer, at

which point they enter an extended

diapause (maintaining a state of

suspended activity). Diapausing larvae

remain in the leaf litter at or near the

base of the host plant through the fall

and winter and some individuals likely

become active again in March or April

of the following year. Some larvae may

be able to extend diapause for more than

one season depending upon the
3866 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules

individual and environmental

conditions (R. H. T. Mattoni pers.

comm. to C. Nagano 1997). Once

diapause is broken, the larvae feed and

grow through three to four additional

instars, enter their pupal stage, and then

emerge as adult butterflies in April and

May. Behavioral observations of

Fender’s blue butterfly indicate the

larvae are alert to potential predators,

with individuals dropping from their

feeding position on lupine leaves to the

base of the plant at the slightest sign of

disturbance (C. Schultz, University of

Washington, pers. comm. 1994). The life

cycle of Fender’s blue butterfly may be

completed in one year.

The larvae of many species of

lycaenid butterflies, including Icaricia

icarioides, possess specialized glands

that secrete a sweet solution sought by

some ant species who may actively

‘‘tend’’ and protect them from predators

and parasites (Ballmer and Pratt 1988;

G. Pratt pers. comm. to C. Nagano 1997).

Although other subspecies of

Boisduval’s blue butterfly are tended by

ants during their larval stage (Downey

1962, 1975; Thomas Reid Associates

1982; R. H. T. Mattoni and G. Pratt, pers.

comm. to C. Nagano 1997), limited

observations of Fender’s blue butterfly

larvae in the field have failed to

document such a mutualistic

association (Hammond 1994). However,

this may be due to the nocturnal activity

patterns of the larvae of Icaricia

icarioides as it appears that this species

has an obligate relationship with ants

(G. Pratt pers. comm. to C. Nagano

1997). Non-native Argentine ants

(Iridomyrmex humilis) have been

observed tending Fender’s blue butterfly

larvae during indoor rearing trials

(Schultz, pers. comm. 1994).

The near absence of Fender’s blue

butterfly at sites without Lupinus

sulphureus ssp. kincaidii suggest that L.

laxiflorus (spurred lupine) and L.

albicaulis (sickle keeled lupine) are

secondary foodplants used by the

animal (Hammond and Wilson 1993k).

Fender’s blue butterfly inhabits two

sites that contain only L. laxiflorus,

where it is the primary foodplant

(Schultz 1996) and L. laxiflorus cooccurs with L. sulphureus ssp. kincaidii

at two additional sites (Hammond and

Wilson 1993). Fender’s blue butterfly

occupies six sites containing only L.

albicaulis, where it is the primary

foodplant. However, the butterfly is

declining at two of these sites. Lupinus

albicaulis and L. laxiflorus may possess

physical or biochemical properties that

render them less suitable for Fender’s

blue butterfly than L. sulphureus ssp.

kincaidii. This phenomenon in

foodplants has been documented in

other species of butterflies and moths

(Longcore et al. 1997).

Lupinus Sulphureus ssp. Kincaidii

Lupinus sulphureus ssp. kincaidii was

first described in 1924 by C.P. Smith as

L. oreganus var. kincaidii from a

collection made in Corvallis, Oregon

(Kuykendall and Kaye 1993a). Phillips

(1955) transferred the taxon to a

subspecies status as L. sulphureus ssp.

kincaidii. Hitchcock et al. (1961)

retained the position noted by Phillips

(1955), but preferred the combination as

a varietal rank, L. sulphureus var.

kincaidii.

Lupinus sulphureus ssp. kincaidii

occupies 51 sites throughout the

Willamette Valley and one site in

southern Washington. The northern

limit of L. sulphureus ssp. kincaidii is

Lewis County, Washington, while it

ranges south to Douglas County, Oregon,

a latitudinal span of over 400 km (250

mi). This distribution implies a close

association with native upland prairie

sites that are characterized by heavier

soils and mesic to slightly xeric soil

moisture levels. At the southern limit of

its range, the subspecies occurs on welldeveloped soils adjacent to serpentine

outcrops where the plant is often found

under scattered oaks (Kuykendall and

Kaye 1993a).

With its low-growing habit and

unbranched inflorescence, Lupinus

sulphureus ssp. kincaidii is easily

distinguished from other sympatric

members of the genus Lupinus. Its

aromatic flowers have a slightly

reflexed, distinctly ruffled banner and

are yellowish-cream colored, often

showing shades of blue on the keel. The

upper calyx lip is short, yet unobscured

by the reflexed banner when viewed

from above. The leaflets tend to be a

deep green with an upper surface that

is often glabrous. The plants are 4–8

decimeters (dm) (16–32 in) tall, with

single to multiple unbranched flowering

stems and basal leaves that remain after

flowering (Kuykendall and Kaye 1993).

Lupinus sulphureus ssp. kincaidii is a

long-lived perennial species, with a

maximum reported age of 25 years (M.

Wilson, Oregon State University, in litt.,

1993). Individual plants are capable of

spreading by rhizomes producing

clumps of plants exceeding 20 meters

(m) (65.62 feet (ft)) in diameter (P.

Hammond, independent consultant,

pers. comm. 1994). The long rhizomes

do not produce adventitious roots,

apparently do not separate from the

parent clump, and the clumps may be

short-lived, regularly dying back to the

crown (Kuykendall and Kaye 1993a).

Self-incompatible, L. sulphureus ssp.

kincaidii is pollinated by solitary bees

and flies (P. Hammond, pers. comm.

1994). Seed set and seed production are

low, with few (but variable) numbers of

flowers producing fruit from year to

year and each fruit containing an

average of 0.3–1.8 seeds (Liston et al.

1994). Seeds are dispersed from fruits

that open explosively upon drying.

Erigeron Decumbens var. Decumbens

Thomas Nuttall (1840) based his

description of Erigeron decumbens on a

specimen he collected in the summer of

1835. The autonym E. decumbens var.

decumbens was automatically

established by Cronquist (1947) when

he described E. decumbens var.

robustior. Recent revisions of the

Erigeron genus (Strother and Ferlatte

1988, Nesom 1989) treat the plant as a

variety, E. decumbens var. decumbens.

According to Strother and Ferlatte

(1988), Erigeron decumbens var.

decumbens is geographically limited to

the Willamette Valley. They also restrict

the morphologically similar E.

decumbens var. robustior to Humboldt

and western Trinity Counties,

California. Intermediate specimens of

Erigeron from southern Oregon are

considered by Strother and Ferlatte

(1988) to be robust specimens of E.

eatonii var. plantagineus.

A review of herbarium specimens by

Clark et al. (1993) shows a historical

distribution of Erigeron decumbens var.

decumbens throughout the Willamette

Valley. Collections were frequent

between 1881 and 1934, yet from 1934

to 1980 no collections or observations

were made (Clark et al. 1993). The

species was rediscovered in 1980 in

Lane County, Oregon, and has since

been identified at 28 sites in Polk,

Marion, Linn, Benton, and Lane

counties, Oregon. With 28 occurrences

and 115 ha (284 ac) of occupied habitat,

E. decumbens var. decumbens has the

most restricted range of the species

proposed for listing herein.

Erigeron decumbens var. decumbens

is a perennial herb, 15–60 mm (0.6–2.4

in.) tall, with erect to sometimes

prostrate stems at the base. The basal

leaves often wither prior to flowering

and are mostly linear, 5–12 cm (2–5 in.)

long and 3–4 mm (0.1–0.2 in.) wide.

Flowering stems produce 2–5 heads,

each of which is daisy-like, with

pinkish to pale blue ray flowers and

yellow disk flowers. Ray flowers often

fade to white with age (Siddall and

Chambers 1978). The morphologically

similar E. eatonii occurs east of the

Cascade Mountains, while the sympatric

species Aster hallii flowers later in the

summer. Erigeron decumbens var.

decumbens can be confused with A.

hallii in their vegetative state, but close
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules 3867

examination reveals the reddish stems

of A. hallii in contrast to the green stems

of E. decumbens var. decumbens (Clark

et al. 1993).

As with many species in the family

Asteraceae, Erigeron decumbens var.

decumbens produces large quantities of

wind-dispersed seed. Flowering

typically occurs in June and July with

pollination carried out by syphrid flies

and solitary bees. Seeds are released in

July and August. Although the seeds are

wind-dispersed, the short stature of this

species likely precludes the longdistance travel of many of these seeds.

Erigeron decumbens var. decumbens is

capable of vegetative spreading and is

commonly found in large clumps

scattered throughout a site (Clark et al.

1993).

Previous Federal Action

Erigeron decumbens var. decumbens

was initially included as a category 2

candidate in a Notice of Review

published by the Service on December

15, 1980 (45 FR 82506). Category 2

candidates were those species for which

the Service had information in its

possession indicating that listing may be

appropriate, but for which additional

information was needed to support the

preparation of a proposed rule. On

November 28, 1983, the Service

published a Notice of Review upgrading

this species to category 1 status (48 FR

53649). Category 1 taxa were taxa for

which the Service had sufficient data in

its possession to support preparation of

listing proposals. Subsequently, E.

decumbens var. decumbens was

reassigned category 2 candidacy by a

Notice of Review published on

September 27, 1985 (50 FR 39527). On

February 21, 1990 the Service published

a Notice of Review (55 FR 6202) that

reinstated E. decumbens var.

decumbens as a category 1 candidate

and also designated Lupinus sulphureus

ssp. kincaidii as a category 2 candidate

(55 FR 6121). The Service published a

Notice of Review on February 28, 1996

(61 FR 7596), updating the candidate

species list and changing the policy on

candidates to discontinue the use of

candidate categories. Erigeron

decumbens var. decumbens was

retained as a candidate species;

however, Lupinus sulphureus ssp.

kincaidii and other former category 2

candidates were not. The 1997 Notice of

Review retained Erigeron decumbens

var. decumbens as a candidate species;

Lupinus sulphureus ssp. kincaidii was

not included as a candidate. Since this

Notice of Review was published, the

Service has reevaluated the available

information and determined that listing

is warranted for both Erigeron

decumbens var. decumbens and

Lupinus sulphureus ssp. kincaidii.

Fender’s blue butterfly was initially

assigned to category 3A taxa in the

Notice of Review published by the

Service on January 6, 1989 (54 FR 572).

The best available information at that

time indicated that this butterfly was

likely extinct because the subspecies

was last observed in 1937. Category 3A

taxa were taxa for which the Service had

pervasive evidence of extinction,

however if rediscovered, such taxa

might be reconsidered for listing. The

rediscovery of this butterfly in May

1989 prompted the Service to change

the status of the subspecies to a category

2 candidate in the Notice of Review

published on November 21, 1991 (56 FR

58830). In the Notice of Review

published on February 28, 1996 (61 FR

7596), the Service retained Fender’s

blue butterfly as a candidate for listing.

The 1997 Notice of Review also retained

Fender’s blue butterfly as a candidate

for listing.

The processing of this proposed

listing rule conforms with the Service’s

final listing priority guidance for fiscal

year (FY) 1997 that was published in the

Federal Register on December 5, 1996

(61 FR 64475–64481), and the Service’s

extension of the FY 1997 guidance

published in the Federal Register on

October 23, 1997 (62 FR 55268). The

guidance clarifies the order in which the

Service will process rulemakings

following two related events—(1) the

lifting, on April 26, 1996, of the

moratorium on final listings imposed on

April 10, 1995 (Public Law 104–6), and

(2) the restoration of significant funding

for listing through passage of the

omnibus budget reconciliation law on

April 26, 1996, following severe funding

constraints imposed by a number of

continuing resolutions between

November 1995 and April 1996. The

guidance calls for giving highest priority

to handling emergency situations (Tier

1) and second highest priority (Tier 2)

to resolving the listing status of the

outstanding proposed listings. Tier 3

includes the processing of new

proposed listings for species facing high

magnitude threats. This proposed rule

for Fender’s blue butterfly (Icaricia

icarioides fenderi), Lupinus sulphureus

ssp. kincaidii (Kincaid’s lupine), and

Erigeron decumbens var. decumbens

(Willamette daisy) falls under Tier 3.

According to the Listing Priority

Guidance, the Service is operating

under a more balanced listing program

and may process Tier 3 actions.

Processing of this proposed rule is in

accordance with the current Listing

Priority Guidance.

Summary of Factors Affecting the

Species

Section 4 of the Endangered Species

Act and regulations (50 CFR Part 424)

promulgated to implement the listing

provisions of the Act set forth the

procedures for adding species to the

Federal lists. A species may be

determined to be an endangered or

threatened species due to one or more

of the five factors described in Section

4(a)(1). These factors and their

application to Fender’s blue butterfly

(Icaricia icarioides fenderi), Lupinus

sulphureus Dougl. ssp. kincaidii (Smith)

Phillips (Kincaid’s lupine), and Erigeron

decumbens Nutt. var. decumbens

(Willamette daisy) are as follows.

A. The Present or Threatened

Destruction, Modification, or

Curtailment of its Habitat or Range

The primary loss of habitat for

Fender’s blue butterfly, Lupinus

sulphureus ssp. kincaidii, and Erigeron

decumbens var. decumbens has resulted

from the extensive alteration of native

prairie in the Willamette Valley that has

occurred over the last 140 years,

described in the ‘‘Background’’ section

above. As a result, over 99 percent of the

native prairie in the Willamette Valley,

the only known habitat area of Fender’s

blue butterfly, L. sulphureus ssp.

kincaidii, and E. decumbens var.

decumbens, has been lost (E. Alverson,

pers. comm. 1994).

Within the 84 remnants of native

prairie occupied by these species in the

Willamette Valley, Fender’s blue

butterfly occurs at 31 sites (Hammond

and Wilson 1993, Schultz 1996),

Lupinus sulphureus ssp. kincaidii

occurs at 51 sites (Kuykendall and Kaye

1993a), and Erigeron decumbens var.

decumbens occurs at 28 sites (Clark et

al. 1993). In this collection of sites,

Fender’s blue butterfly and L.

sulphureus ssp. kincaidii are found in

close association, occurring together at a

total of 24 sites. Erigeron decumbens

var. decumbens co-occurs with L.

sulphureus ssp. kincaidii at only one

site and with Fender’s blue butterfly at

only this same site, Baskett Butte.

Typically these sites are small, with

extirpation likely in the near future.

Activities that destroy, modify or curtail

the habitat of L. sulphureus ssp.

kincaidii, E. decumbens var.

decumbens, and Fender’s blue butterfly

are discussed below.

The immediacy of the threat of habitat

loss in the last remaining 84 remnants

of native prairie occupied by these

species has been well documented.

Habitat at 80 percent of the sites (e.g.,

68 sites) is rapidly disappearing due to
3868 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules

agriculture practices, development

activities, forestry practices, grazing,

roadside maintenance, and commercial

Christmas tree farms.

At least eleven prairie remnants are

likely to be impacted by agricultural

activities. Five of these are wetland

prairies occupied by Erigeron

decumbens var. decumbens and the

remaining six are upland prairies

occupied by Lupinus sulphureus ssp.

kincaidii and Fender’s blue butterfly.

The types of impacts include examples

such as a wheat field boundary

adjustment near Buell in Polk County

(Mill Creek-Hwy 22 at Buell) that is

likely to lead to loss of a population of

Fender’s blue butterfly and L.

sulphureus ssp. kincaidii (Hammond

1994). By 1996, this boundary

adjustment was implemented with a

diminished population of L. sulphureus

ssp. kincaidii and Fender’s blue

butterfly still present; however, no

Fender’s blue butterflies were observed

at this site in 1997 (Hammond, pers.

comm. 1997). The majority of the

habitat supporting populations of each

of these species are habitat remnants,

e.g., small habitat patches remaining

after other habitat loss has occurred.

Small habitat patches that occur along

State and County roadsides face greater

threats from agriculture than those

occurring along non-roadside areas.

While in past decades many roadside

habitats were less disturbed, today

roadside stretches of habitats adjoining

grass seed farms are now being disked

and/or sprayed with herbicides to kill

all roadside vegetation (A. Robinson,

U.S. Fish and Wildlife Service, pers.

comm. 1997). Grass seed farms use

herbicide spraying to create bare soil as

a common practice to prevent the

spread of weeds from roadsides into the

grass seed fields. Many of these areas

are inhabited by populations of E.

decumbens var. decumbens.

Urban development has caused

additional loss of prairie habitat (Clark

et al. 1993; Hammond 1992, 1994, 1996;

Kuykendall and Kaye 1993; Liston et al.

1994; Schultz, 1996; Sidall and

Chambers 1978). Destruction of upland

prairie habitat occupied by Fender’s

blue butterfly and Lupinus sulphureus

ssp. kincaidii at several sites since 1992

has caused the butterflies at these sites

to either completely die out or to be

reduced to low, non-viable numbers

(Hammond 1994, 1996). Future losses

for 48 prairie remnants are projected as

a result of urban development. This is

the largest single factor currently

threatening the survival of these prairie

species. Nineteen of these remnants are

wetland prairies supporting Erigeron

decumbens var. decumbens and the

other 29 are upland prairie remnants

supporting populations of Fender’s blue

butterfly and L. sulphureus ssp.

kincaidii.

Examples of this type of threat are the

Dallas-Oakdale Avenue sites 1 and 2

covering about 2 ha (5 ac) occupied by

Fender’s blue butterfly and L.

sulphureus ssp. kincaidii near the town

of Dallas in Polk County that is expected

to be lost due to housing development

planned at that site (Hammond 1996).

The loss of native prairie habitat is

further exemplified by the destruction

of a site supporting 6,000 plants in Lane

County, formerly the largest occurrence

of E. decumbens var. decumbens,

plowed under in 1986 prior to the

development of an industrial and

residential site (Kagan and Yamamoto

1987). Construction of a single driveway

resulted in the loss of one site occupied

by Fender’s blue butterfly and L.

sulphureus ssp. kincaidii in Kings

Valley (Hammond 1994). Future

highway construction potentially

threatens the Nielson Road site of L.

sulphureus ssp. kincaidii located in a

highway expansion corridor in Lane

County (Oregon Natural Heritage

Program 1996). The population of

Fender’s blue butterfly and L.

sulphureus ssp. kincaidii at Wren in

Benton County occurs at two sites and

covers about 9 ha (22 ac, however, only

a portion of the population (7.4 ha)

occurs on land owned by The Nature

Conservancy (TNC). Heavy clearing and

mowing activities on private lands

adjacent to the TNC property has caused

the decline of the lupine and is reducing

the butterfly population at the Wren site

to a non-viable state (Hammond and

Wilson 1993). At the Willow Creek

Main site, Fender’s blue butterfly and L.

sulphureus ssp. kincaidii occur together.

This site is actively managed for the

benefit of the species and the lands are

considered relatively secure from

development threats. Although this TNC

site is considered a secure habitat area,

extensive damage to habitat occupied by

Fender’s blue butterfly and L.

sulphureus ssp. kincaidii occurred in

1996 during pipeline repair work

conducted on a utility corridor

easement. Two other moderately sized

habitat patches occupied by E.

decumbens var. decumbens face habitat

loss from trash dumping (at the Grande

Ronde site) and urbanization (at the

west Eugene site) (Clark et al. 1993).

Silvicultural activities for timber

production have threatened 6 percent (5

sites) of the remaining 84 prairie

occurrences. The Coburg Ridge area-2

site in Lane County is the largest site

occupied by Fender’s blue butterfly and

is among the best examples of remnant

upland native prairie in the Willamette

Valley (Hammond 1994). Native species

were severely damaged, however, by the

application of grass-specific herbicide

that eliminated grasses and severely

damaged other herbaceous species prior

to tree planting activities.

Approximately 1 ha (2.5 ac) was

sprayed with herbicide. The saddle

section of Coburg Ridge (area-2) that

received aerial application of the

herbicide is used by Fender’s blue

butterfly due to the presence of Lupinus

laxiflorus, an alternate host plant, but

this site does not contain L. sulphureus

ssp. kincaidii (Schultz 1996). Loss of

such alternate host plant sites further

limits the habitat that is available to

support Fender’s blue butterfly.

Additional tree-planting efforts by an

adjacent Coburg Ridge landowner

threatens to alter a different portion of

the grassland in area-2, which has

displayed the highest levels of butterfly

activity in previous years (Schultz

1996). This site received spot herbicide

application during the planting efforts,

rather than the aerial broadcast method

of the first case; therefore, the

immediate effects to the habitat were

not as severe. However, tree saplings

were planted and as the trees grow they

will eventually shade out the native

prairie species, resulting in the loss of

butterfly habitat. Herbicide spraying

associated with reforestation after

logging has also altered habitat and

caused a decline of a L. sulphureus ssp.

kincaidii population on Bureau of Land

Management (BLM) properties. The

other large sized occurrence of the

butterfly and L. sulphureus ssp.

kincaidii is in Benton County on

McDonald State Forest and adjacent

private lands that could be similarly

affected by surrounding silvicultural

operations.

Grazing is currently impacting 12 of

the occupied habitat patches, with five

of these being wetlands occupied by

Erigeron decumbens var. decumbens.

Most of the habitat occupied by

Fender’s blue butterfly and Lupinus

sulphureus ssp. kincaidii at the Oak

Ridge south site in Yamhill County has

been lost due to heavy grazing

(Hammond 1996). Another site of L.

sulphureus ssp. kincaidii, covering

about 4.6 ha (11 ac) at Crabtree Hill in

Lane County, is being damaged by

extensive livestock grazing. The

Crabtree Hill population of 6,000 plants

is the largest known L. sulphureus ssp.

kincaidii population.

The next most common threat to these

species is roadside maintenance

activities. At least 30 sites occur along

roadsides and are impacted by

maintenance activities. Examples
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules 3869

include the populations of Fender’s blue

butterfly and Lupinus sulpheureus ssp.

kincaidii at the Oak Ridge north site that

were recently lost due to road

maintenance activities. When planned

developments are completed on the Oak

Ridge south site, the butterfly and

lupine will essentially be extirpated

from the Oak Ridge area (Hammond

1996). Two sites on Oregon Department

of Transportation (ODOT) property and

one site on land owned by the City of

Corvallis receive only limited protection

and could potentially be impacted by

future development and highway

maintenance activities. Publicly-owned

roadside sites receive varying degrees of

protection on a district by district basis.

Although some roadside sites have been

marked as no-spray zones by the Native

Plant Society of Oregon, this protective

measure is not always effective. The

roadside portion of a L. sulphureus ssp.

kincaidii population in Kings Valley

continues to receive herbicide

application during roadside weed

control activities, despite efforts to

restrict spraying. Other roadside sites

receive only sporadic protection during

herbicide application. Privately

managed roadside occurrences do not

fare much better; extensive mowing at

the Wren sites in Benton County and Fir

Butte Road roadside sites in Lane

County have caused declines in

Fender’s blue butterfly and L.

sulphureus ssp. kincaidii populations

(Hammond 1994). With frequent weed

control efforts ongoing, as well as

highway and driveway construction,

small roadside occurrences of Fender’s

blue butterfly, L. sulphureus ssp.

kincaidii, and Erigeron decumbens var.

decumbens are unlikely to persist.

Between 1994 and 1996, Fender’s blue

butterfly populations disappeared from

(or are considered no longer viable) at

least seven small roadside sites (Liberty

Road, Monmouth Falls City Road, Fern

Corner, Grant Creek, and McTimmonds

Valley in Polk County, and two sites at

Wren) and populations at many of the

remaining roadside sites continue to

decline.

Between 1990 and 1992, three sites

occupied by both Fender’s blue butterfly

and Lupinus sulphureus ssp. kincaidii

were lost in the McTimmond’s Valley to

the expansion of Christmas tree farming

operations (Hammond 1994).

Conversion of these three sites

destroyed approximately 3 ha (7 ac) of

habitat along roadside and private land

that comprised the nucleus of two

Fender’s blue butterfly populations and

a substantial number of L. sulphureus

ssp. kincaidii plants. The two roadside

occurrences of the butterfly that remain

nearby are no longer considered viable

due to the loss of the source butterfly

populations and considerable numbers

of L. sulphureus ssp. kincaidii plants.

Hammond (1994) stated that these two

roadside occurrences are not expected

to persist for more than a few additional

years. The Service does not know if the

two roadside occurrences still exist.

In summary, habitat loss from a wide

variety of causes (urbanization,

agriculture, silvicultural practices, and

roadside maintenance) is a severe

problem faced by Fender’s blue

butterfly, Lupinus sulphureus ssp.

kincaidii, and Erigeron decumbens var.

decumbens at a majority of their

occurrences. Development and land

alteration in the Willamette Valley has

been so extensive that all the

occurrences of the three species on the

valley floor have essentially been

relegated to small patches of habitat,

except for three hilltop areas (Baskett

Slough National Wildlife Refuge,

Coburg Ridge, and McDonald State

Forest) that, because of their

topography, have not been subjected to

agricultural and urban development

activities occurring on the valley floor.

Only 16 out the 84 remnant prairie sites

that are occupied by one or more of

these species are currently not

threatened with destruction of habitat.

However, herbivory, exotic weed

species competition, and/or succession

threaten all of these 16 sites (see Factor

E below for more information). As

habitat loss continues on these prairie

remnants, populations of the three

species in these 64 areas are likely to be

extirpated. At least 12 of 31 sites

occupied by Fender’s blue butterfly, 47

of 51 sites occupied by L. sulphureus

ssp. kincaidii, and 24 of 28 sites

occupied by E. decumbens var.

decumbens occur on private lands and,

without further action, are expected to

be lost in the near future. The threat of

extinction for these species is high,

given the expected continuing

extirpation of small populations, the

continued habitat loss on moderate sites

and large sites, and the continuing

degradation of habitat, even on secure

sites (see Factor E below for more

information about continuing

degradation of habitat).

B. Overutilization for Commercial,

Recreational, Scientific, or Educational

Purposes

Rare butterflies, such as Fender’s blue

butterfly are highly prized by insect

collectors. Although there are no studies

on the impact of the removal of

individuals from natural populations of

this animal, based on studies of another

lycaenid butterfly (Duffey 1968), and an

endangered nymphalid butterfly (Gall,

1984a and 1984b), it is likely that

Fender’s blue butterfly could be

adversely affected due to its isolated,

possibly small populations. There is an

international commercial trade for

butterfly species proposed for listing, as

well as other imperiled or rare

butterflies (C.D. Nagano, J. Mendoza,

and C. Schroeder, USFWS, pers. obs.,

1992–1997) and specimens of Fender’s

blue butterfly are known to have

recently been offered for trade (C.

Nagano pers. obs.). Some collectors and

dealers closely monitor listing activities

by the Service and they are known to

have stockpiled rare butterflies in

anticipation of their becoming

designated as endangered or threatened

species (C.D. Nagano and J. Mendoza,

pers. obs., 1992). Collecting from small

colonies or repeated handling and

marking (particularly of females and in

years of low abundance) could seriously

damage the populations through loss of

individuals and genetic variability (Gall

1984b; Murphy 1988; Singer and

Wedlake 1981). Collection of females

dispersing from a colony also can

reduce the probability that new colonies

will be founded. Collectors pose a threat

because they may be unable to recognize

when they are depleting butterfly

colonies below the thresholds of

survival or recovery, especially when

they lack appropriate biological training

or the area is visited for a short period

of time (Collins and Morris 1985).

There likely is high interest by

collectors in Fender’s blue butterfly due

to its unique history of assumed

extinction. The rediscovery in 1989 of

this animal generated a great deal of

publicity and interest, which in turn

increases demand by collectors.

Collectors often highly prize rare

butterflies (Morris et al. 1991) and at

times take all wild specimens obtainable

for use in trade (U. S. Department of

Justice, in litt. 1993). The populations of

Fender’s blue butterfly that remain face

strong pressure from some members of

the collecting community. Since many

of the Fender’s blue butterfly

populations occur along public

roadsides, the species is easily acquired

and the extremely limited numbers and

distribution of many of the remaining

populations make this species

vulnerable to collectors.

Due to their unattractive weedy like

appearance, the threat to Erigeron

decumbens var. decumbens and/or

Lupinus sulphureus ssp. kincaidii from

collection for horticultural purposes

may be less than the threat from

collectors faced by Fender’s blue

butterfly. Although no current evidence

exists of such horticultural collection or
3870 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules

other overutilization for scientific

purposes for either E. decumbens var.

decumbens or L. sulphureus ssp.

kincaidii, the threat posed by collecting

for personal herbarium specimens is

significant due to their rarity and the

relative accessability of roadside

populations.

C. Disease or Predation

Although most lepidopteran larvae

suffer significant mortality from

parasitoid attack, no instances of

parasitism (Hammond 1993) or disease

(R. H. T. Mattoni, pers. comm. to C. D.

Nagano 1997) have been documented

for Fender’s blue butterfly.

Lupinus sulphureus ssp. kincaidii

evidently hosts a number of herbivore

and parasite species. Gall-forming

insects attack unopened flowers and the

bases of woody stems. Weevils lay eggs

in the developing floral embryos and

their offspring stimulate the fruit to

produce callous tissue as a food source.

Misdirection of the developing fruit by

weevil larvae effectively prevents viable

seed formation in the parasitized fruits

(Kuykendall and Kaye 1993b). Weevil

damage at some sites (e.g., Willow

Creek) can be high, with some plants

suffering 90 percent loss of mature fruits

(E. Alverson, pers. comm. 1994).

Herbivory has been documented at all

three Fern Ridge Reservoir sites. Loss of

floral parts through herbivory can also

significantly reduce reproduction.

Larvae of the silvery blue butterfly

(Glaucopsyche lygdamus) graze flowers

for pollen and in doing so effectively

destroy them. Silvery blue larvae can

reach high population densities at some

of the sites and may reduce the

fecundity of L. sulphureus ssp.

kincaidii, but do not appear to cause the

death of mature individual plants (C.

Schultz, pers. comm. 1994).

Evidence of insect herbivory on

Erigeron decumbens var. decumbens is

limited. Insect species collected on E.

decumbens var. decumbens in 1993

included sap-sucking insects

(Hemiptera), a bruchid beetle, thrips,

and mites (Clark et al. 1993). Other

threats from herbivory include

consumption of E. decumbens var.

decumbens by cattle; no plants were

found in areas currently or recently

grazed during surveys conducted in

1986 (Kagan and Yamamoto 1987) and

only one site was observed to support E.

decumbens var. decumbens in the

presence of cattle in 1993 (Clark et al.

1993).

D. The Inadequacy of Existing

Regulatory Mechanisms

In 1963, the protection of natural

botanical resources by the State of

Oregon was initiated with the passage of

the Oregon Wildflower Law (ORS

564.010–564.040). This law was

designed to protect specific showy

botanical groups including lilies,

shooting stars, orchids, and

rhododendrons from collection and

trade by horticulturists interested in the

cultivation of these species. It also

prohibits the collection of wildflowers

from ‘‘within 500 feet of the centerline

of any public highway’’ (ORS 564.020

(2)). Although protective in spirit, the

Oregon Wildflower Law carries minimal

penalties and is rarely enforced. As a

means of protecting Lupinus sulphureus

ssp. kincaidii and Erigeron decumbens

var. decumbens populations, the

effectiveness of the law is doubtful.

In 1987, Oregon Senate Bill 533 was

passed to augment the legislative

actions available for the protection of

the State’s threatened and endangered

species, both plant and animal. This

bill, known as the Oregon Endangered

Species Act, mandates responsibility for

threatened and endangered species in

Oregon to two State agencies—the

Oregon Department of Agriculture

(ODOA) for plant species (ORS 564.105)

and the Oregon Department of Fish and

Wildlife (ODFW) for ‘‘wildlife’’ species

(ORS 496.172).

As reauthorized in 1995 (HB 2120),

the Oregon Endangered Species Act

does not include invertebrate animals in

the definition of ‘‘wildlife.’’ Therefore,

Fender’s blue butterfly receives no

protection under the Oregon

Endangered Species Act. The Oregon

Natural Heritage Program is the only

State agency ‘‘which tracks locations of

and works to protect the rare, threatened

and endangered invertebrates of

Oregon’’ (Oregon Natural Heritage

Program 1993). The Heritage program

has created a Sensitive Species

invertebrate list, which includes

Fender’s blue butterfly as a ‘‘priority 1

species.’’ Priority 1 species are ‘‘taxa

threatened or endangered throughout

range’’ (Oregon Natural Heritage

Program 1993). The program can assist

planning agencies in managing lands for

the benefit of rare invertebrate taxa, but

it has no regulatory authority over rare

invertebrates (Jimmy Kagan, Oregon

Natural Heritage Program, pers. comm.

1997).

For plant species, the Oregon

Endangered Species Act directs the

ODOA to maintain a strong program to

conserve and protect native plant

species classified by the State as

threatened or endangered. Erigeron

decumbens var. decumbens, as a Statelisted endangered species and Lupinus

sulphureus ssp. kincaidii as a Statelisted threatened species receive

protection on State-managed lands

under the Oregon Endangered Species

Act. The ODOA is able to regulate the

import, export, or trafficking of Statelisted plant species when they are in

transit (under ORS 564.1200). The

ODOA’s ability to protect plant

populations, such as restricting take

under the Oregon Endangered Species

Act, is limited to ‘‘land owned or leased

by the State, or for which the State

holds a recorded easement’’ (ORS

564.115). ‘‘Nothing in ORS 564.100 to

564.130 is intended * * * to require the

owner of any commercial forest land or

other private land to take action to

protect a threatened species or

endangered species’’ on his lands (ORS

564.135(1)). As a result, populations of

L. sulphureus ssp. kincaidii and E.

decumbens var. decumbens on private

lands receive minimal protection from

their State status as endangered or

threatened.

ODOT owns and manages roadside

habitat where Lupinus sulphureus ssp.

kincaidii and Erigeron decumbens var.

decumbens are present. The Oregon

Endangered Species Act requires the

protection of these State-listed species.

ODOT has responded, in conjunction

with Oregon State University

researchers and the Native Plant Society

of Oregon, by providing road crews with

maps of these areas and instruction to

avoid herbicide use.

Lupinus sulphureus ssp. kincaidii,

Erigeron decumbens var. decumbens,

and Fender’s blue butterfly occurrences

within the Service’s National Wildlife

Refuges receive protection within the

boundaries of the refuge. All three

species occur together only at Baskett

Slough National Wildlife Refuge, which

actively manages habitat for the benefit

of the species.

Under section 7 of the Endangered

Species Act, Federal agencies are

required to consult with the Service if

any action they regulate, fund or carry

out may jeopardize the continued

existence of an endangered or

threatened species. Species that are

candidates for listing receive no formal

regulatory protection under the Act. The

BLM and the Forest Service (FS) manage

lands occupied by Lupinus sulphureus

ssp. kincaidii. This species on BLM

properties is given some protection

through a general conservation

agreement that applies to all Federal

candidate species. The population of L.

sulphureus ssp. kincaidii that occurs in

the Umpqua National Forest is not

covered under any conservation

agreement and receives no official

protection under the Act.

On Corps lands, discretion for the

protection and management of State-
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules 3871

listed and Federal candidate species lies

at the local level. Funds may be

available in some years to proactively

manage these species. Lupinus

sulphureus ssp. kincaidii, Erigeron

decumbens var. decumbens, and

Fender’s blue butterfly have received

habitat protection, as well as support for

research activity from the Corps through

allocation of personnel and supplies to

these projects. This protection and

cooperation is voluntary for candidate

species and is dependent on

continuation of sufficient funding.

Populations of Erigeron decumbens

var. decumbens occur in seasonally

flooded wet prairies with hydric soils

(Clark et al. 1993). Under section 404 of

the Clean Water Act, the Corps regulates

the discharge of fill into waters of the

United States, including navigable

waters, wetlands (e.g., wet prairies), and

other waters (33 CFR parts 320–330).

The Clean Water Act requires project

proponents to obtain a permit from the

Corps prior to undertaking many

activities (e.g., grading, discharge of soil

or other fill material, etc.) that would

result in the filling of wetlands subject

to the Corps’ jurisdiction. The Corps

promulgated nationwide permit number

26 (NWP 26) to address fill of isolated

or headwater wetlands. Under the 1996

reauthorized NWP 26 (61 FR 65873),

project proposals that involve the fill of

wetlands less than one third of an acre

are considered authorized. Fill areas

between 0.33 acre and 1 acre require

only notification to the Corps. When

placement of fill would adversely

modify between 1 to 3 acres of wetland,

the Corps circulates a predischarge

notification to the Service and other

interested parties for comment to

determine whether or not an individual

permit should be required for the

proposed fill activity and associated

impacts.

Individual Corps permits are required

for discharge of material that would fill

or adversely modify greater than 3 acres

of wetlands. The review process for

individual permits is more rigorous than

for nationwide permits. Unlike

nationwide permits, an analysis of

cumulative wetland impacts is required

for individual permit applications.

Resulting permits may include special

conditions that require potential

avoidance or mitigation for

environmental impacts. On nationwide

permits, the Corps has discretionary

authority to instead require an

individual permit if the Corps believes

that resources are sufficiently important,

regardless of the wetland’s size. In

practice, however, the Corps generally

does not require an individual permit

when a project qualifies for a

nationwide permit, unless a threatened

or endangered species or other

significant resources would be adversely

affected by the proposed activity. In

such cases, conferencing and

consultation requirements of section 7

of the Act do pertain to the Corps’

regulatory process.

Disking and some other farming,

ranching and silviculture practices can

degrade or destroy wetland habitat

without a permit from the Corps

because these activities are exempt from

regulation under the Clean Water Act

(33 CFR 323.4 (a)). The discontinuous

configuration of the existing wet prairies

further obscures these wetland losses.

Occurrences of Lupinus sulphureus ssp.

kincaidii, and Fender’s blue butterfly in

upland (non-wetland) areas receive no

protection under section 404 of the

Clean Water Act.

The primary inadequacies in existing

regulations pertain to populations of

Fender’s blue butterfly, Lupinus

sulphureus ssp. kincaidii, and Erigeron

decumbens var. decumbens that occur

on private lands that currently have no

connection to Federal authority or

funding. Privately owned lands where

populations of these species occur

constitute a significant portion of the

range of these species and play a

substantial role in their continued

existence.

E. Other Natural or Manmade Factors

Affecting its Continued Existence

Larger sites (greater than 10 ha (25

ac)) currently support relatively stable

populations of Fender’s blue butterflies,

Lupinus sulphureus ssp. kincaidii, and

Erigeron decumbens var. decumbens

and provide the greatest potential for

long-term persistence of the species if

their current condition can be sustained

or improved. However, few of these

larger sites are secure from threats due

to habitat loss. The only large site

occupied by each of the species that is

considered relatively secure from

habitat loss is Baskett Slough National

Wildlife Refuge in Polk County,

although the habitat condition is

declining from invasion by alien plants

(Hammond 1996, Hammond 1994,

Hammond and Wilson 1993). The two

remaining large butterfly sites (Coburg

Ridge area—1 and 2, and McDonald

State Forest 1) and the one remaining

large lupine site (McDonald State Forest

1) are not considered secure because

these sites face loss or degradation of

habitat through adjacent silviculture

operations, ecological succession to

shrub and forest, and competition from

alien species (Hammond 1994,

Kuykendall and Kaye 1993a).

Erigeron decumbens var. decumbens

occupies three large sites. Two of those

sites, one occurring on Corps property

and the other on land owned by TNC,

are being managed to benefit native

prairie species and are relatively secure.

The third site on private land is not

managed for native prairie species and

is not protected from habitat loss.

The small occurrences of the three

taxa in this proposed rule,

predominantly roadside and fence line/

boundary sites, face an immediate threat

of destruction from a variety of activities

including development, agriculture,

silvicultural practices, roadside

maintenance, and herbicide application.

The degree to which habitat loss

threatens Fender’s blue butterfly,

Lupinus sulphureus ssp. kincaidii, and

Erigeron decumbens var. decumbens

becomes evident when the size of the

populations is examined. Of the 51 sites

occupied by L. sulphureus ssp.

kincaidii, 40 consist of small area

occurrences, less than 3.4 ha (8.3 ac) in

size. The Fender’s blue butterfly,

occupying a subset of the lupine sites,

shows a similar pattern with 23 of its 31

populations found on parcels of 3.4 ha

(8.3 ac) or less. All of the small site

occurrences of the Fender’s blue

butterfly are likely to be extirpated

within the next five years because

habitat may not be large enough to

support viable populations. Of the 28

sites occupied by E. decumbens var.

decumbens, 17 are less than 3.4 ha (8.3

ac) in size. These small occurrences

account for a majority of the known

populations for all three species.

Given the impact of such habitat

losses on these small habitat patches,

the extirpation of most of the small

Fender’s blue butterfly populations is

anticipated within five years. Lupinus

sulphureus ssp. kincaidii may survive

for a time in these small sites;

nonetheless, extirpation of L.

sulphureus ssp. kincaidii at most, if not

all, of their 40 small sites is also

anticipated in the future. Similarly,

these habitat losses are expected to also

cause extirpation of the 17 small

populations of Erigeron decumbens var.

decumbens. Should these smaller

populations disappear, only 8 habitat

areas of Fender’s blue butterfly (a 75

percent reduction in number of sites),

11 habitat areas of L. sulphureus ssp.

kincaidii (a 78 percent reduction in

number of sites), and 11 habitat areas of

E. decumbens var. decumbens (a 61

percent reduction of sites) will remain.

The importance of these sites,

particularly for the Fender’s blue

butterfly, lies in their potential to serve

as corridors among larger, neighboring

populations. The loss of these sites and
3872 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules

the loss of accompanying potential

habitat, severely compromises the

ability of any of the species to disperse

from larger sites (Hammond and Wilson

1993, Schultz 1996). Larger populations

will remain isolated, with no

opportunities for migration and/or

recolonization if local conditions

become unfavorable. Thus, the status of

the species as a whole declines.

A less visible threat to the smaller

occurrences is the decrease in vigor and

viability experienced by populations of

few individuals. For the Fender’s blue

butterfly, small numbers and localized

populations increase the risk of loss

through random genetic or demographic

factors. (Gilpin and Soule’ 1986,

Kuykendall and Kaye 1993b, Lacy

1992). Eighteen of the 31 Fender’s blue

butterfly sites contain 50 or fewer

individuals. The threat of extinction due

to naturally occurring genetic or

demographic events can play a

significant role in the instability of the

species as a whole. The isolation of

these small populations due to habitat

fragmentation precludes recolonization

from larger populations and could result

in the permanent loss of occurrences

once populations fall below a critical

level.

This pattern of extinction and

recolonization of connected colonies of

butterflies has been disrupted by the

extensive fragmentation of remaining

habitat and the disruption of the

disturbance regimes that have

maintained them. The remnant

populations, now small in numbers, are

either unconnected or exchange

individuals to a very limited degree.

With their limited dispersal abilities,

low numbers and dwindling habitat, a

majority of the remaining populations of

Fender’s blue butterfly likely face

permanent extirpation. The small

population sizes at several sites pose

their own threat to the survival of

Fender’s blue butterfly as demographic

and genetic problems can push a

population to extinction (Hammond and

Wilson 1993).

Random human and environmental

events may also affect the small

populations of these species and cause

future extirpations. The impact of such

events are magnified by the size of the

populations. It is much easier to cause

the extirpation of a population

occupying a small area than one

occupying a larger area. Due to the small

area occupied by many of the remaining

populations, randomly occurring

natural events can play a role in

extirpation. One small population of

Erigeron decumbens var. decumbens

previously found on Finley National

Wildlife Refuge was recently lost due to

erosion (Meincke 1980). A natural

change in a waterway course was

apparently responsible. Shultz (1996)

stated that large fluctuations in

populations evident in her 3-year study

from 1993 to 1995 indicate that Fender’s

blue butterfly populations are strongly

influenced by random variation in

weather conditions from year to year;

these large fluctuations make Fender’s

blue butterfly extremely susceptible to

loss of habitat and host plants due to

human-caused events or invasive alien

plants.

A serious long-term threat to all

Fender’s blue butterfly, Lupinus

sulphureus ssp. kincaidii, and Erigeron

decumbens var. decumbens occurrences

is the change in community structure

due to succession. Currently, succession

has been documented for 70 of the 84

relic prairie sites occupied by one or

more of these species proposed for

listing. Invasion by alien plant species

has been documented at 36 of these 84

prairie sites. The natural transition of

grassland to forest in the absence of

disturbance means that prairie sites left

unmanaged likely will eventually be

lost (Clark et al. 1993; Franklin and

Dyrness 1973; Hammond and Wilson

1993; Johannsesen et al. 1971;

Kuykendall and Kaye 1993). In addition,

the presence of tall, fast-growing alien

species speeds the conversion of open

upland prairie to dense, rank grasslands

and shrublands. Invasive woody species

of concern include the alien plants

Rubus discolor (Himalayan blackberry)

and Cytisus scoparius (Scotch broom),

and the native Toxicodendron

diversiloba (poison oak). Non-native

grass species aggressive enough to

suppress L. sulphureus ssp. kincaidii

and E. decumbens var. decumbens

include Holcus lanatus (velvet grass),

Dactylis glomerata (orchard grass),

Brachypodium sylvaticum (false-brome),

and Arrhenatherum elatius (tall oatgrass) (Hammond 1996).

The degree of the threat of succession

at roadside sites varies considerably

depending on the vegetation control

employed by each County at each site.

Fender’s blue butterfly populations at

small roadside sites are weak (low

numbers) and are close to extinction

either through degradation of habitat

from invasion of alien grasses,

succession by shrubs and trees, or

through development activities

(Hammond 1996). One roadside site at

Oak Ridge that was previously

considered stable has declined since

1992, and is being invaded by large

thickets of Rubus ssp. (blackberry) and

Cytisus scoparius (Hammond 1996).

Non-roadside sites in general face the

greatest threat from succession/weed

expansion and invasion due to a lack of

disturbance that disrupts successional

progress. Otherwise secure habitat on

Corps lands is being heavily invaded by

the alien plant Arrhenatherum elatius,

and the butterfly population is

alarmingly small (Schultz 1996). Prime

habitat occupied by Erigeron

decumbens var. decumbens at Baskett

Butte is rapidly being overgrown with

alien grass and trees (Hammond 1996).

About 25 percent of the large Coburg

Ridge site occupied by Fender’s blue

butterfly and Lupinus sulphureus ssp.

kincaidii is threatened by the profuse

shrub growth of Cytisus scoparius

(Hammond 1996). Regardless of the size

of the site, invasion by non-native

plants is a threat at all of the sites

occupied by any of the three species

proposed for listing in this rule.

The application of pesticides and

biological control agents to control

insect pests, such as gypsy moths, is

also a threat to Fender’s blue butterfly.

Although the sensitivity of Fender’s

blue butterfly larvae to specific

insecticides is not known, the potential

result from use of gypsy moth control

agents on habitats occupied by the

Fender’s blue butterfly should not be

dismissed (Hammond 1994). The use of

microbial insecticides, such as Bacillus

thuringiensis (Bt) has been shown to

have significant residual toxic impacts

on native butterflies under field

conditions even with heavy rain and

ultraviolet light exposure (Schriber and

Gage 1995).

Taken together as a category, other

natural and manmade factors have a

profound effect on the remaining

populations of Fender’s blue butterflies,

Lupinus sulphureus ssp. kincaidii, and

Erigeron decumbens var. decumbens.

Nearly all of the populations are

threatened by either alien species,

successional transition of habitat, or

demographic and genetic factors as a

result of small population size.

Populations of Fender’s blue butterfly at

all of the 31 sites are currently

threatened by one of these factors. The

same holds true for all 28 sites of E.

decumbens var. decumbens and for all

51 sites of L. sulphureus ssp. kincaidii.

Although progressing on a slower time

scale, the encroachment of alien plants,

the successional advance of tree and

shrub species and other naturally

occurring random events will, if

unchecked, lead to reductions in

population size, reductions in

population viability and, ultimately, the

extinction of these native prairie

species.

The Service has carefully assessed the

best scientific and commercial

information available regarding the past,
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules 3873

present, and future threats faced by

these species in determining to propose

this rule. Threats to Fender’s blue

butterfly are more imminent than

threats to Lupinus sulphureus kincaidii

since the butterfly, with its biology and

shorter life span, will exhibit more rapid

declines in numbers and in the face of

threats will be extirpated more quickly

at any one location. Because of its

longer life span, small numbers of L.

sulphureus ssp. kincaidii plants are

likely to persist longer in any given

habitat area than are small numbers of

butterflies. Threats to Erigeron

decumbens var. decumbens are also

more imminent than threats to L.

sulphureus ssp. kincaidii because of the

fewer populations of E. decumbens var.

decumbens. Secondly, many of the

populations of E. decumbens var.

decumbens grow along roadsides

adjacent to agricultural activities

(especially grass seed farms) where

herbicide spraying to create bare soil is

common practice. Based on this

evaluation, Fender’s blue butterfly and

E. decumbens var. decumbens are in

danger of extinction throughout all or a

significant portion of their respective

ranges, while L. sulphureus ssp.

kincaidii is likely to become endangered

within the foreseeable future. Therefore,

the Service proposes to list Fender’s

blue butterfly (Icaricia icarioides

fenderi) and E. decumbens var.

decumbens (Willamette daisy) as

endangered and to list L. sulphureus

ssp. kincaidii (Kincaid’s lupine) as

threatened.

Critical Habitat

Critical habitat is defined in section

3(5)(A) of the Act as (i) the specific areas

within the geographical area occupied

by a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (i) essential to the conservation

of the species and (II) that may require

special management considerations or

protection; and (ii) specific areas

outside the geographical area occupied

by a species at the time it is listed, upon

a determination that such areas are

essential for the conservation of the

species. The term ‘‘conservation’’ means

the use of all methods and procedures

needed to bring the species to the point

at which listing under the Act is no

longer necessary.

Section 4(a)(3) of the Act, as

amended, requires that to the maximum

extent prudent and determinable, the

Secretary propose critical habitat at the

time a species is determined to be

threatened or endangered. The Service

finds that designation of critical habitat

is not prudent for Erigeron decumbens

var. decumbens, Lupinus sulphureus

ssp. kincaidii, or Fender’s blue butterfly

at this time. Service regulations (50 CFR

424.12(a)(1)) state that the designation

of critical habitat is not prudent when

one or both of the following situations

exist—(1) The species is threatened by

taking or other human activity, and

identification of critical habitat can be

expected to increase the degree of threat

to the species or (2) such designation of

critical habitat would not be beneficial

to the species.

The listing of Lupinus sulphureus ssp.

kincaidii and Erigeron decumbens var.

decumbens in and of itself contributes

to a certain level of risk from overcollection. This is because listing

acknowledges the rarity of a species,

which then creates a certain level of

demand by collectors. Easily accessible

roadside populations with few

individuals would be particularly

susceptible to indiscriminate collection

by persons interested in rare plants and/

or butterflies if not for the fact that

location information is not readily

available.

Designation of critical habitat for

Lupinus sulphureus ssp. kincaidii,

Erigeron decumbens var. decumbens,

and Fender’s blue butterfly is not

considered prudent, because the

disclosure of precise maps and

descriptions of critical habitat in the

Federal Register would likely subject

these populations to loss of individuals

and over-collection, resulting in the

further decline of the species. The

Fender’s blue butterfly is also

vulnerable to acts of vandalism, which

may damage or eliminate populations of

this animal.

In the case of Fender’s blue butterfly,

both criteria apply. As discussed under

‘‘Summary of Factors Affecting the

Species,’’ this animal and its habitat are

vulnerable to several activities,

especially the removal of specimens for

scientific or personal collections. The

Service is concerned about the impacts

of the illicit commercial trade on

Fender’s blue butterfly. Specimens of

this species are known to have recently

been offered for trade by a butterfly

collector. Unauthorized collecting is an

activity that can be difficult to control

because it can be done in an

inconspicuous and discreet manner.

The international trade of butterflies,

including listed species, is an

established practice and the value of a

specimen is commensurate with the

quality of the specimen and its rarity.

High prices for prized specimens can

provide an incentive for illegal take and

trade. Listing in itself increases the

publicity and interest in a species’

rarity, and thus may directly increase

the value and demand for specimens.

Trade of illegally captured or held

butterflies and other invertebrates has

lead to several arrests and convictions

for violations of the Lacey Act

(Claiborne 1997; Hoekwater 1997;

Mendoza 1995; U. S. Department of

Justice 1993, 1994, 1995a, 1995b;

Williams 1996). However, with the

designation of critical habitat, precise

pinpointing of localities would result

from publication of critical habitat

descriptions and maps in the Federal

Register. Since the access to many sites

is not actively protected, managed or

monitored closely enough to prevent

trespass or restrict access, the disclosure

of critical location information on rare

species increases collection activities on

the animal, even for butterflies that have

been designated as endangered or

threatened species.

Since many of the extant populations

of Fender’s blue butterfly are comprised

of a small number of individuals (less

than a few hundred individuals, and at

seven sites only five individuals), one

person seeking to augment a private or

scientific collection could extirpate a

population with the removal of a few

individuals. Several populations are

along roadsides, which make them

particularly accessible. Therefore,

designation of critical habitat would

increase the vulnerability of smaller

sites, thereby increasing the risk of

extinction at these smaller sites from

collection.

In addition to the threat of overcollection, critical habitat designation

may also make Fender’s blue butterfly

and its habitat prone to visitation and

impact by non-collectors curious about

any of the three species discussed in

this proposed rule. Curiosity seekers

may inadvertently trample host plants

and crush eggs, larvae or adult

butterflies. Fender’s blue butterfly cooccurs with Lupinus sulphureus ssp.

kincaidii at 14 sites and also occurs with

Erigeron decumbens var. decumbens at

1 site. Publication of critical habitat

descriptions and maps for L. sulphureus

ssp. kincaidii, E. decumbens var.

decumbens, or Fender’s blue butterfly

would place all three species at an

increased risk of harm from trampling or

habitat destruction. For example, in the

spring of 1997, naturalists intent on

observing the endangered Palos Verdes

blue butterfly (Glaucopsyche lygdamus

palosverdesensis) trampled and

damaged its habitat in their quest to

obtain photographs of the animal (C.

Nagano, pers. obs. 1997).

Designation of critical habitat could

also increase the vulnerability of

Fender’s blue butterfly habitat to

intentional destruction by landowners
3874 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules

who do not want a protected species on

their property. In the mid-1980’s, a

landowner disked the habitat of the now

endangered Quino checkerspot butterfly

(Euphydryas editha quino) and

eliminated the species from the site after

being informed about its presence (C.

Nagano, pers. obs.).

Furthermore, the designation of

critical habitat provides limited benefit

in addition to the protection and

awareness that these three taxa will

receive by virtue of their listing. Section

7(a)(2) of the Act requires Federal

agencies in consultation with the

Service, to ensure that any action

authorized, funded, or carried out by

such agency, does not jeopardize the

continued existence of a federally listed

species, or does not destroy or adversely

modify designated critical habitat. The

occurrences of these three species are so

closely associated to their habitat yearround that any designated critical

habitat areas would overlap areas of

species’ presence and occurrence.

Therefore, when a species is listed, an

analysis to determine jeopardy under

section 7(a)(2) would consider take

associated with habitat impacts. Such

an analysis would closely parallel any

analysis of habitat impacts conducted to

determine adverse modification of

critical habitat. As a result, a

determination of adverse modification

of critical habitat for Fender’s blue

butterfly or Lupinus sulfureus ssp.

kincaidii or Erigeron decumbens ssp.

decumbens is highly likely to be

accompanied with a determination of

jeopardy. Listing of these species will

ensure that section 7 consultation

occurs and potential impacts to the

species and its habitat are considered

for any Federal action that may affect

these species. In the case of Fender’s

blue butterfly, the listing of L. sulfureus

ssp. kincaidii will also ensure that

Federal agencies consult even when

Federal actions may affect unoccupied

potentially suitable habitat for the

butterfly.

It is the intent of critical habitat

designation to provide additional

benefits to the species through increased

awareness and management activities.

Benefits resulting from designation of

critical habitat are anticipated to be

limited because Federal, State, and

conservation group land managers with

moderate and larger extant populations

of Fender’s blue butterfly and Erigeron

decumbens ssp. decumbens have known

of the occurrence of these species and

have initiated management activities in

several cases. The largest populations of

the Fender’s blue butterfly occur at

Baskett Slough National Wildlife Refuge

(1,400 individuals on 50 ha) and the

second largest is at Willow Creek Main

managed by TNC (764 individuals on

3.8 ha). The largest population of

Erigeron decumbens ssp. decumbens

occurs at Willow Creek Preserve

managed by TNC (2,080 individual

plants on 20.3 ha) and the second and

third occur on Corps land (Fisher Butte

has 1,500 plants on 20.3 ha and Fisher

Butte Dike has 1,000 plants on 4.1 ha).

All of the large populations of Lupinus

sulphureus ssp. kincaidii occur on

private lands and designating critical

habitat for L. sulphureus ssp. kincaidii

would reveal locations of the Fender’s

blue butterfly.

The BLM, FS, Corps, and the Service

are aware of the presence and locations

of the three species on their properties.

The Corps and Service are managing the

lands that are under their jurisdiction to

restore habitat for the three species and

are monitoring the existing populations.

Extant populations of Fender’s blue

butterfly and Lupinus sulphureus ssp.

kincaidii occur on State lands managed

by ODOT and Oregon State University

(OSU) College of Forestry. The ODOT is

aware of locations of Fender’s blue

butterfly, L. sulfureus ssp. kincaidii, and

Erigeron decumbens ssp. decumbens

sites, and are currently managing these

sites to avoid impacts from State road

maintenance activities. The ODOT is a

non-Federal representative of the

Federal Highway Administration (FHA)

for the purposes of section 7

consultation. Therefore, any ODOT

activities funded by the FHA that may

affect listed species would require

section 7 consultation. The OSU

Department of Botany and Plant

Pathology has been working

cooperatively with OSU College of

Forestry to conserve habitats at

McDonald State Forest where L.

sulphureus ssp. kincaidii and Fender’s

blue butterfly occur in butterfly

meadows on OSU lands (Mark Wilson,

pers. comm. 1997).

Other Federal agencies will be

notified with this proposed rule.

Therefore, agencies such as the

Department of Housing and Urban

Development (HUD) would be subject to

section 7 consultation under the Act.

Agencies, such as HUD, with any

actions that may impact listed species

whether occurring on Federal, State, or

private lands, would be subject to

section 7 consultation under the Act.

Since activities on Federal lands and

federally funded activities would be

subject to section 7 consultation and

recovery planning with listing,

protection of habitat will be addressed

through the consultation and recovery

processes.

Aside from consideration under

section 7, the Act does not provide any

additional protection to lands

designated as critical habitat.

Designating critical habitat does not

create a management plan for the areas

where the listed species occurs; does

not establish numerical population

goals or prescribe specific management

actions (inside or outside of critical

habitat); and does not have a direct

effect on areas not designated as critical

habitat.

Critical habitat designation would

provide limited benefit on private lands.

The primary reasons are that critical

habitat designation provides protection

only on Federal lands or on private

lands if there is Federal involvement

through authorization or funding of, or

participation in, a project or activity. In

other words, a designation of critical

habitat on private lands does not

compel or require private landowners to

undertake recovery or active

management for the species. Also,

Federal actions on private lands are

likely to be limited, but nevertheless

would require section 7 consultation if

such actions may affect listed species. In

addition, private landowners with

sizeable or significant populations of the

Fender’s blue butterfly, Lupinus

sulfureus ssp. kincaidii, and Erigeron

decumbens var. decumbens are aware of

the populations of the species on their

lands. Landowners and managers of

smaller sites will be notified with

publication of the proposed rule. In the

case of The Nature Conservancy,

management and conservation activities

have been implemented.

Smaller roadside sites may benefit

from critical habitat designation by

increasing awareness of locations to

County road maintenance crews.

However, the benefit of critical habitat

designation of these smaller sites would

be small to negligible when compared to

the increased risks and vulnerability

these smaller sites may face from

collection or vandalism with disclosure

of their locations.

In summary, the Service believes that

any benefit potentially provided by

designation of critical habitat for

Fender’s blue butterfly, Lupinus

sulphureus ssp. kincaidii, or Erigeron

decumbens var. decumbens would be

outweighed by the increase in threats to

the species and their habitat from illegal

collecting and vandalism caused by

such designation. Therefore, the Service

has determined that designation of

critical habitat for Fender’s blue

butterfly, Lupinus sulphureus ssp.

kincaidii, or Erigeron decumbens var.

decumbens is not prudent. Protection of

Fender’s blue butterfly habitat, Lupinus
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules 3875

sulphureus ssp. kincaidii, and Erigeron

decumbens var. decumbens will be

addressed through the section 7

consultation process and through

recovery actions.

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the Act include

recognition, recovery actions,

requirements for Federal protection, and

prohibitions against certain activities.

Recognition through listing encourages

and results in conservation actions by

Federal, State, and private agencies,

groups, and individuals. The Act

provides for possible land acquisition

and cooperation with the States and

requires that recovery actions be carried

out for all listed species. The protection

required of Federal agencies and the

prohibitions against taking and harm of

animals and certain activities involving

listed plants are discussed, in part,

below.

Section 7(a) of the Act, as amended,

requires Federal agencies to evaluate

their actions with respect to any species

that is proposed or listed as endangered

or threatened and with respect to its

critical habitat, if any is being

designated. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR Part

402. Section 7(a)(4) requires Federal

agencies to confer informally with the

Service on any action that is likely to

jeopardize the continued existence of a

proposed species or result in

destruction or adverse modification of

proposed critical habitat. If a species is

listed subsequently, section 7(a)(2)

requires Federal agencies to ensure that

activities they authorize, fund, or carry

out are not likely to jeopardize the

continued existence of such a species or

to destroy or adversely modify its

critical habitat. If a Federal action is

likely to adversely affect a listed species

or its critical habitat, the responsible

Federal agency must enter into formal

consultation with the Service.

As a result of the occupation of

roadside habitat by Erigeron decumbens

var. decumbens, Lupinus sulphureus

ssp. kincaidii, and Fender’s blue

butterfly, the FHA would become

involved with these species in the event

of full or partial funding of state

highway maintenance by the Federal

government. Such maintenance

activities would be subject to review

under the Act. Additionally, sites

supporting occurrences of E. decumbens

var. decumbens, L. sulphureus ssp.

kincaidii, and Fender’s blue butterfly on

private holdings would be subject to

review under section 7 of the Act if

HUD is involved in the issuance of

housing loans. The BLM, FS, and Corps

manage lands known to contain extant

populations of the three species in this

proposed rule. In all of these cases, the

consultation and conservation

requirements placed upon Federal

agencies by the Act would be initiated.

Furthermore, opportunities for land

acquisition, conservation agreements

and other recovery strategies would be

bolstered by listing these species as

endangered or threatened.

The Act and its implementing

regulations set forth a series of general

prohibitions and exceptions that apply

to all endangered and threatened plants.

All prohibitions of section 9(a)(2) of the

Act, implemented by 50 CFR 17.61 for

endangered plants and 50 CFR 17.71 for

threatened plants, apply. These

prohibitions, in part, make it illegal for

any person subject to the jurisdiction of

the United States to import or export,

transport in interstate or foreign

commerce in the course of a commercial

activity, sell or offer for sale in interstate

or foreign commerce, or remove and

reduce the species to possession from

areas under Federal jurisdiction. In

addition, for plants listed as

endangered, the Act prohibits the

malicious damage or destruction of

areas under Federal jurisdiction and the

removal, cutting, digging up, or

damaging or destroying of such plants

in knowing violation of any State law or

regulation, including State criminal

trespass law (see 16 U.S.C. § 1538

(a)(2)(B). Section 4(d) of the Act allows

for the provision of such protection to

threatened species through regulation.

This protection may apply to Lupinus

sulphureus ssp. kincaidii in the future if

a special regulation is promulgated after

opportunity for public notice and

comment. Seeds from cultivated

specimens of threatened plants are

exempt from these prohibitions

provided that their containers are

marked ‘‘Of Cultivated Origin.’’ Certain

exceptions to the prohibitions apply to

agents of the Service and State

conservation agencies.

The Act and 50 CFR 17.62, 17.63, and

17.72 also provide for the issuance of

permits to carry out otherwise

prohibited activities involving

endangered and threatened plants under

certain circumstances. Such permits are

available for scientific purposes and to

enhance the propagation or survival of

the species. For threatened plants,

permits also are available for botanical

or horticultural exhibition, educational

purposes, or special purposes consistent

with the purposes of the Act. It is

anticipated that few trade permits

would ever be sought or issued because

Lupinus sulphureus ssp. kincaidii and

Erigeron decumbens var. decumbens are

not common in cultivation or in the

wild.

The Act and implementing

regulations also set forth a series of

general prohibitions and exceptions that

apply to all endangered wildlife. These

prohibitions, codified at 50 CFR 17.21,

in part, make it illegal for any person

subject to the jurisdiction of the United

States to take (includes harass, harm,

pursue, hunt, shoot, wound, kill, trap,

capture, collect; or to attempt any of

these), import or export, ship in

interstate commerce in the course of

commercial activity, or sell or offer for

sale in interstate or foreign commerce

any listed species. It also is illegal to

possess, sell, deliver, carry, transport, or

ship any such wildlife that has been

taken illegally. Certain exceptions apply

to agents of the Service and State

conservation agencies.

Permits may be issued to carry out

otherwise prohibited activities

involving endangered wildlife under

certain circumstances. Regulations

governing permits are codified at 50

CFR 17.22 and 17.23. Such permits are

available for scientific purposes, to

enhance the propagation or survival of

the species, and/or for incidental take in

connection with otherwise lawful

activities.

It is the policy of the Service, as

published in the Federal Register on

July 1, 1994 (59 FR 34272), to identify

to the maximum extent practicable at

the time a species is listed, those

activities that would or would not

constitute a violation of section 9 of the

Act. The intent of this policy is to

increase public awareness of the effect

of the listing on proposed and ongoing

activities within the range of a species.

Erigeron decumbens var. decumbens,

and Lupinus sulphureus ssp. kincaidii

are known to occur on Federal lands

under the jurisdiction of the Service,

Corps, BLM, or FS. In the event of

listing, occurrences of these species on

Federal lands would be protected from

collection, damage or destruction under

section 9 of the Act. State law provides

some protection to populations on Stateowned lands as discussed previously. In

appropriate cases, collection of these

species could be allowed through the

issuance of a Federal endangered

species permit. The Service is not aware

of any otherwise lawful activities being

conducted or proposed by the public

that will be affected by this listing and

result in a violation of Section 9.

As a listed wildlife species, Fender’s

blue butterfly would receive more

extensive protection under the Act than

described for the plant species above.
3876 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules

Section 9 prohibits the take of any listed

wildlife species by any person subject to

the jurisdiction of the United States.

The Service believes that, based on the

best available information, the following

actions would not be violations of

section 9:

(1) Possession, delivery, or movement,

including interstate transport and

import or export from the United States,

involving no commercial activity, of

dead specimens of Fender’s blue

butterfly that were collected prior to the

date of publication in the Federal

Register of a final regulation adding this

taxon to the list of endangered species;

(2) Actions that may affect Fender’s

blue butterfly and are authorized,

funded, or carried out by a Federal

agency when the action is conducted in

accordance with section 7 of the Act;

(3) Land actions or management

carried out under a habitat conservation

plan approved by the Service pursuant

to section 10(a)(1)(B) of the Act, or an

approved conservation agreement; and,

(4) Scientific research carried out

under a recovery permit issued by the

Service pursuant to section 10(a)(1)(A)

of the Act.

Potential activities involving Fender’s

blue butterfly that the Service will likely

consider a violation of section 9

include, but are not limited to, the

following:

(1) Take of Fender’s blue butterfly

without a recovery permit pursuant to

section 10(a)(1)A) or an incidental take

permit pursuant to section 10(a)(1)(B) of

the Act (this includes harassing,

harming, pursuing, hunting, shooting,

wounding, killing, trapping, capturing,

or collecting, or attempting any of these

actions);

(2) Possess, sell, deliver, carry,

transport, or ship illegally taken

specimens of Fender’s blue butterfly,

except for properly documented antique

specimens of this taxon at least 100

years old, as defined by section 10(h)(1)

of the Act;

(3) The unauthorized release of

biological control agents that attack,

damage, or kill any stage of this taxa;

(4) The removal or destruction of the

foodplants being utilized by Fender’s

blue butterfly, defined as Lupinus

sulphureus ssp. kincaidii, L. albicaulis,

and L. laxiflorus; and,

(5) Destruction or alteration of

Fender’s blue butterfly habitat by

grading, leveling, plowing, mowing,

burning, herbicide or pesticide spraying,

intensively grazing, or otherwise

disturbing grasslands that result in the

death or injury of adult butterflies and/

or their larvae or eggs, or that impair the

species’ essential breeding, foraging, or

sheltering.

Questions regarding whether specific

activities will constitute a violation of

section 9 should be directed to the State

Supervisor of the Service’s Oregon State

Office (see ADDRESSES section). Requests

for copies of the regulations concerning

listed plant and animal species and

general inquiries regarding prohibitions

and permits may be addressed to the

U.S. Fish and Wildlife Service,

Endangered Species Permits, 911 N.E.

11th Avenue, Portland, Oregon 97232–

4181 (telephone 503–231–2063; FAX

503–231–6243).

Public Comments Solicited

The Service intends that any final

action resulting from this proposal will

be as accurate and as effective as

possible. Therefore, comments or

suggestions from the public, other

concerned governmental agencies, the

scientific community, industry, or any

other interested party concerning this

proposed rule are hereby solicited.

Comments particularly are sought

concerning:

(1) Biological, commercial trade, or

other relevant data concerning any

threat (or lack thereof) to these species;

(2) The location of any additional

populations of these species and the

reasons why any habitat should or

should not be determined to be critical

habitat pursuant to section 4 of the Act;

(3) Additional information concerning

the range, distribution, and population

size of these species; and

(4) Current or planned activities in the

subject area and their possible impacts

on Erigeron decumbens var. decumbens,

Lupinus sulphureus ssp. kincaidii, and

Fender’s blue butterfly.

Final promulgation of the regulation

on these species will take into

consideration the comments and any

additional information received by the

Service. Such communications may lead

to a final regulation that differs from

this proposal.

The Endangered Species Act provides

for one or more public hearings on this

proposal, if requested. Requests must be

received within 45 days of the date of

publication of the proposal in the

Federal Register. Such requests must be

made in writing and addressed to State

Supervisor, U.S. Fish and Wildlife

Service, Oregon State Office (see

ADDRESSES above).

Required Determinations

This rule does not contain collections

of information that require approval by

the Office of Management and Budget

under 44 U.S.C. 3501 et seq.

National Environmental Policy Act

The Fish and Wildlife Service has

determined that Environmental

Assessments and Environmental Impact

Statements, as defined under the

authority of the National Environmental

Policy Act of 1969, need not be

prepared in connection with regulations

adopted pursuant to section 4(a) of the

Endangered Species Act of 1973, as

amended. A notice outlining the

Service’s reasons for this determination

was published in the Federal Register

on October 25, 1983 (48 FR 49244).

Required Determinations

This rule does not contain collections

of information that require approval by

the Office of Management and Budget

under 44 U.S.C. 3501 et seq.

References Cited

A complete list of all references cited

herein, as well as others, is available

upon request from the Oregon State

Office (see ADDRESSES above).

Author. The primary author of this

proposed rule is Richard VanBuskirk,

Fish and Wildlife Biologist (see

ADDRESSEES section). Assistance with

the portions of this proposed rule

dealing with Fender’s blue butterfly

were completed by Chris Nagano, staff

entomologist, U.S. Fish and Wildlife

Service, Carlsbad Field Office, 2730

Loker Avenue West, Carlsbad, California

92008.

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Proposed Regulation Promulgation

Accordingly, the Service hereby

proposes to amend part 17, subchapter

B of chapter I, title 50 of the Code of

Federal Regulations, as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500, unless otherwise noted.

2. Amend section 17.11(h) by adding

the following, in alphabetical order,

under INSECTS, to the List of

Endangered and Threatened Wildlife to

read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 / Proposed Rules 3877

Species

Historic range

Vertebrate population where endangered or threatened

Status When

listed

Critical

habitat

Special

rules Common name Scientific name

* * * * * * *

INSECTS

* * * * * * *

Fender’s blue butterfly.Icaricia icarioides

fenderi.

U.S.A. (OR) ............. NA ........................... E .................... NA NA

* * * * * * *

3. Amend section 17.12(h) by adding

the following, in alphabetical order,

under FLOWERING PLANTS, to the List

of Endangered and Threatened Plants to

read as follows:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

Species

Historic range Family Status When listed Critical

habitat

Special

rules Scientific name Common name

* * * * * * *

FLOWERING PLANTS

* * * * * * *

Erigeron decumbens

var. decumbens.

Willamette daisy ...... U.S.A. (OR) ............. Asteraceae .............. E .................... NA NA

* * * * * * *

Lupinus sulphureus

ssp. kincaidii.

Kincaid’s lupine ....... U.S.A. (OR, WA) ..... Fabaceae ................ T .................... NA NA

* * * * * * *

Dated: December 30, 1997.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 98–1851 Filed 1–26–98; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE59

Endangered and Threatened Wildlife

and Plants; Proposed Rule to List the

San Bernardino Kangaroo Rat as

Endangered; and Notice of Public

Hearing

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) proposes to make the

provisions of the emergency rule listing

the San Bernardino kangaroo rat

(Dipodomys merriami parvus) as an

endangered species pursuant to the

Endangered Species Act of 1973, as

amended (Act), permanent. The historic

range of the San Bernardino kangaroo

rat has been reduced by approximately

96 percent due to agricultural and urban

development. Of the remaining

occupied habitat, a minimum of 90

percent is threatened by habitat loss,

degradation, and fragmentation due to

sand and gravel mining operations,

flood control projects, and urban

development. In addition, all of the

remaining populations of San

Bernardino kangaroo rat are threatened

by seasonal flood events due to current

restriction of the subspecies to these

active flood plain habitats. Additional

data and information on the status of

this animal, which may assist the

Service in making a final decision on

this proposed action, is solicited.

DATES: Comments from all interested

parties must be received by March 30,

1998. A public hearing has been

scheduled for Tuesday, March 3, 1998,

from 2–4 P.M. and 6–8 P.M.

ADDRESSES: Comments and materials

concerning this proposal should be

submitted to the Field Supervisor, U.S.

Fish and Wildlife Service, Carlsbad

Field Office, 2730 Loker Avenue West,

Carlsbad, California 92008. Comments

and materials received will be available

for public inspection, by appointment,

during normal business hours at the

above address. The public hearing will

be held at the San Bernardino Hilton,

285 E. Hospitality Lane, San

Bernardino, California.

FOR FURTHER INFORMATION CONTACT:

Field Supervisor, Carlsbad Field Office,

at the address listed above (telephone

760/431–9440).

SUPPLEMENTARY INFORMATION:

Background

For a thorough discussion of

biological information, previous Federal

action, a summary of the factors

affecting the species, the reasons why

critical habitat is not being proposed,

and conservation measures available to

listed and proposed species, consult the

emergency rule on the San Bernardino

kangaroo rat published in this same

Federal Register, separate part.

Public Comments Solicited

The Service intends that any final

action resulting from this proposal will

be as accurate and as effective as

possible. Therefore, comments or

suggestions from the public, other

concerned governmental agencies, the

scientific community, industry, or any

other interested party concerning this

proposed rule are hereby solicited.